Lykos, Robert

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University of Denver

Water Law Review Volume 6 Issue 1 Article 58 9-1-2002 City of Waterbury v. Town of Washington, 800 A.2d 1102 (Conn. 2002) Robert Lykos Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Robert Lykos, Court Report, City of Waterbury v. Town of Washington, 800 A.2d 1102 (Conn. 2002), 6 U. Denv. Water L. Rev. 228 (2002). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW REVIEWevidence that Buccino's predecessors withheld such rights, Ace had, asa matter of law, the right to use Hall's pond for recreational purposes.Regan RozierCity of Waterbury v. Town of Washington, 800 A.2d 1102 (Conn. 2002)(holding exhausting administrative remedies is unnecessary to aConnecticut Environmental Protection Act claim and findingunreasonable public trust impairment must be consistent withConnecticut Environmental Protection Act statutory scheme)City of Waterbury ("Waterbury") appealed the ConnecticutSuperior Court's declaratory judgment for the Town of Washington("Washington"), which held that Waterbury's Shepaug dam operationviolated the Connecticut Environmental Protection Act ("CEPA")because it polluted the public trust, but not by becoming a public orprivate nuisance. The trial court found alleged excessive diversionsinterfered with the Washington's riparian rights, breaching the parties'1921 contract. On appeal to the Connecticut Supreme Court, theWashington cross-claimed for injunctive relief, alleging the diversionsunreasonably impaired the public trust, and that relief granted couldnot cure Waterbury's breach. The supreme court reversed and heldthat: (1) exhausting administrative remedies was unnecessary to aCEPA claim; (2) the trial court's unreasonable impairment finding wasincorrect because it did not consider minimum flow statutes as withinCEPA's mandate; and (3) Waterbury established a prescriptiveeasement against the Washington's riparian rights. On remand, thecourt must consider CEPA, public trust and riparian rights claims, aswell as a new remedy for the contractual claim.A 1921 contract permitted Waterbury to divert, out of the ShepaugRiver, only amounts necessary for consumption and storage.Diversions were unlawful when reservoirs were full. When Waterburybuilt a treatment plant in 1988, a reservoir, from which it did not draw,frequently overflowed. Waterbury also incurred increased costspumping water uphill to "high-service areas," allegedly with a greaterimpact on natural resources than necessary. Over-reliance on Shepaugdam diversions resulted, though other reservoirs overflowed.Waterbury claimed an 1893 agreement allowed these diversions ifin accord with minimum flow statutes, and therefore also in accordwith CEPA. It challenged the trial court's unreasonable impairmentdefinition, contending that only administrative agencies havejurisdiction to determine whether minimum flow statutes are withinCEPA's scope. CEPA, however, did not require exhaustingadministrative remedies because the requirement was neitherstatutorily explicit nor implicit. Its legislative history contemplatedadministrative relief prior to trial, with judicial discretion over whetherto retain the case or refer it to the agency. The trial court thereforeVolume 6COURT REPORTSproperly had subject matter jurisdiction. Cases requiring exhaustingadministrative remedies were overruled.Further, the trial court's unreasonable impairment definition as"something more than de minimus," would force defendants to claimlack of alternatives as a sole affirmative defense. CEPA complianceinstead determines the proper standard. Because minimum flowstatutes were not designed solely to protect fish and wildlife, they wereproper factors in establishing unreasonable impairment, consistentwith CEPA's statutory scheme.Waterbury further established a prescriptive easement againstWashington. Waterbury's conduct was sufficiently open and visible forthe statutory period to give the Washington notice that flowdiminished by diversions adverse to the Washington's rights. Theeasement's scope however, was for the trial court to determine onremand, with reference to the 1893 and 1921 agreements. The trialcourt's remedy was inadequate because it was based on a faulty,unreasonable impairment definition and denied relief for Waterbury'scontractual breach.Robert LykosGrannis Island Co., Inc. v. City of New Haven, No. CV000445887S,2002 WL 230912 (Conn. Super. Ct. Jan. 23, 2002) (affirming a cityplanning commission's denial of a proposed regrade plan because thepetitioner did not support the plan with sufficient evidence and theplan was inconsistent with the Connecticut Coastal Management Act).Grannis Island Co. ("Grannis") owned property in New Haven,bordered by tidal wetlands and property owned by New Haven LandTrust ("NHLT"). Previously, the New Haven Water Authority("NHWA") owned the adjacent property where Grannis storedconstruction materials. Subsequently, NHWA conveyed their propertyto NHLT. Upon acquiring ownership, NHLT requested Grannisremove the stored materials from their property. Consequently,Grannis decided to "regrade and fill 4.6 acres of upland on [its]property" in order to store their construction materials. To attainpermission for the regrade, Grannis applied to the New Haven CityPlan Commission ("Commission") for a coastal site plan review and asoil and erosion control permit. After a hearing, the Commissiondenied Grannis' application. Grannis appealed the application denialto the Superior Court of Connecticut.At issue before the court was whether the record supported theCommission's decision to deny Grannis' application. The courtaffirmed the Commission's decision based on the following factors: (1)there was insufficient evidence regarding the spatial relationshipbetween the proposed regrade and the tidal wetlands border; (2) thedescription of the regrade plan was insufficient; (3) Grannis failed toIssue I

City of Waterbury v. Town of Washington, 800 A.2d 1102 (Conn. 2002)

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City of Waterbury v. Town of Washington, 800 A.2d 1102 (Conn. 2002)

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