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*********************************************** 
APPENDIX

BERNARD W. NUSSBAUM ET AL. v. DEPARTMENT

OF ENERGY AND ENVIRONMENTAL

PROTECTION*

Superior Court, Judicial District of New Britain

File No. CV-18-6043337-S

Memorandum filed January 10, 2020

Proceedings

Memorandum of decision on plaintiffs’ appeal from

decision by defendant denying permit application to

maintain fences and ordering removal of fences. Appeal

dismissed.

John P. Casey, Evan J. Seeman and Andrew A.

DePeau, for the plaintiffs.

Sharon M. Seligman and David H. Wrinn, assistant

attorneys general, for the defendant.
Opinion

CORDANI, J.

INTRODUCTION

This is an administrative appeal of a final decision

of the Department of Energy and Environmental Protection (defendant) denying the permit application of Bernard W. Nussbaum and the Bernard W. Nussbaum Revocable Trust (collectively, plaintiff) and ordering the

plaintiff to remove certain fencing previously installed

by the plaintiff.

This amended decision is being provided in response

to the plaintiff’s motion for reconsideration and reargument. The plaintiff’s motion points out several areas

where the plaintiff considers the court’s original decision to be unclear, and, as such, this amended decision

clarifies those areas. However, the plaintiff’s motion

does not raise any issue that causes the court to substantively change its decision or the judgment entered. The

perceived unclarity arises, primarily, merely from certain nomenclature used by the court but does not substantively affect the decision or the judgment. Accordingly, the plaintiff’s motion for reconsideration and

reargument is respectfully denied.

FACTS AND PROCEDURAL HISTORY

The plaintiff owns property located at 100 and 104

Sea Beach Drive in Stamford (property). The property

is adjacent to Long Island Sound. On its edge that is

adjacent to Long Island Sound, the property line is

defined by the mean high waterline, with the plaintiff’s

property ending on the landward side of the mean high

waterline and property owned by the state of Connecticut as public trust on the waterward side of the mean

high waterline. There is a seawall that generally runs

parallel to the edge of Long Island Sound.

The plaintiff installed two fences. The date of the installation of the fences is not clear; however, it is clear that

the fences were installed without a necessary permit

from the defendant. The two fences separately run generally perpendicular to the seawall toward Long Island

Sound. One fence is 24.5 feet in length, and the other is

27.5 feet in length. In 2002, the plaintiff, with the permission of the defendant, placed a small area1 of large stones

or riprap generally perpendicular to the seawall extending out into Long Island Sound. This area of riprap,

placed by the plaintiff, is composed of large individual

rocks with nothing, other than the ground on which

they are placed, joining the rocks.

On July 16, 2012, the defendant issued the plaintiff

a notice of violation for the two unpermitted fences

and required that the fences be removed. The fences

were not removed. On October 30, 2014, the plaintiff

filed an after-the-fact permit application for the fences

with the defendant. The defendant’s staff issued a tenta-
tive determination to deny the plaintiff’s permit application, and, on November 30, 2015, issued an order for

the fences to be removed. The plaintiff timely requested

hearings on both the permit application and the removal

order. The matters were consolidated for hearing purposes. A public comment hearing was held on August

4, 2016, and an evidentiary hearing was held on October

6, 2016. The hearing officer issued his decision on April

21, 2017, recommending that the commissioner deny

the permit application. A final decision was issued by

the commissioner on February 6, 2018, affirming the

denial of the permit applications and directing the hearing officer to finalize the removal order. The plaintiff

has appealed the administrative action to this court.

The plaintiff is classically aggrieved because the final

decision being appealed refused him a permit to maintain two fences and ordered him to remove the fences.

Thus, specific legal issues, personal to the plaintiff and

his property, are affected by the decision.

STANDARD OF REVIEW

This appeal is brought pursuant to the Uniform

Administrative Procedure Act (UAPA), General Statutes § 4-183.2

Judicial review of an administrative decision in an appeal under the UAPA is limited. See, e.g.,

Murphy v. Commissioner of Motor Vehicles, 254 Conn.

333, 343, 757 A.2d 561 (2000). ‘‘[R]eview of an administrative agency decision requires a court to determine

whether there is substantial evidence in the administrative record to support the agency’s findings of basic

fact and whether the conclusions drawn from those

facts are reasonable. . . . Neither [the Supreme

Court] nor the trial court may retry the case or substitute its own judgment for that of the administrative

agency on the weight of the evidence or questions of

fact. . . . Our ultimate duty is to determine, in view

of all of the evidence, whether the agency, in issuing

its order, acted unreasonably, arbitrarily, illegally or

in abuse of its discretion.’’ (Internal quotation marks

omitted.) Id.

Although the 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, ‘‘[c]ases that present pure questions of law

. . . invoke a broader standard of review than is . . .

involved in deciding whether, in light of the evidence,

the agency has acted unreasonably, arbitrarily, illegally

or in abuse of its discretion.’’ (Internal quotation marks

omitted.) Dept. of Public Safety v. Freedom of Information Commission, 298 Conn. 703, 716, 6 A.3d 763

(2010).

ANALYSIS

The fences in question cannot be lawfully installed

and maintained without a permit issued by the defendant.3

In order to be granted a permit, the fences must
generally comply with the statutes concerning structures, dredging and fill (General Statutes §§ 22a-359

through 22a-363) and the Coastal Management Act

(General Statutes §§ 22a-90 through 22a-111).4

In making a decision as to whether a permit should issue for

these fences, the commissioner was required to consider and balance the private landowner’s property rights

with the state’s and the public’s interest and rights in

land, which is held in public trust, to determine whether

the structure, the fences in this case, unreasonably

impair the public rights in view of the balance of rights.

The fences in this matter were installed, at least in

part, for the purpose of inhibiting the access of the

public to the beach area waterward of the mean high

waterline.5 As noted previously, areas waterward of the

mean high waterline are owned by the state in trust for

the public. The plaintiff sought to inhibit public access

to the public trust adjacent to his property for several

reasons. He found that inhibiting access lessened the

likelihood that the public would trespass on his property. He found that accessing the rocky area adjacent

to his property was unsafe for the public. Finally, he

found that some members of the public, when accessing

the public trust created a nuisance that inhibited his

peaceful enjoyment of his adjacent private property.

The foregoing property interests were asserted on the

plaintiff’s side of the balance.6

On the other side of the balance, the public has a

right to access and use the public beach, rocky or not,

which includes the area adjacent to the property waterward of the mean high waterline, provided that right does

not include trespassing on private property. In fact,

General Statutes § 22a-92 (c) (1) (K) states that, in permitting any new coastal structure, public access to and

along the public beach below the mean high waterline

must not be unreasonably impaired.

In balancing these interests and determining reasonableness, we first must consider the extent of the incursion by the fences into the public trust. Neither party

disputes that at least a portion of each fence extends

beyond the property owned by the plaintiff into the public trust. The parties only disagree about the extent of

the incursion. The disagreement in this regard revolves

around determining whether installation of the riprap

shifted the mean high waterline.7 Mean high waterline

means the line where the arithmetic mean of the high

water heights observed over a specific cycle (the National

Tidal Datum Epoch) meets the shore. Thus, the mean

high waterline is a fact to be measured for any particular

piece of real estate. It is important because it determines

the property boundary when private property borders

the sea. For purposes of this appeal, it therefore determines the extent of the incursion of the fences onto

public property.

The parties both agree that the mean high waterline,
and therefore the property line, was at the waterward

face of the seawall in the area of the fences prior to

installation of the riprap. The plaintiff argues that installation of the riprap moved the mean high waterline

farther into the sea. The defendant disagrees. It is clear

that changes to the land may shift the mean high waterline. In both Lockwood v. New York & New Haven

Railroad Co., 37 Conn. 387, 391 (1870), and in Rapoport

v. Zoning Board of Appeals, 301 Conn. 22, 49–50, 19

A.3d 622 (2011), our Supreme Court accepted that,

changes to the land, either natural or man-made, which

amount to either land reclamation or erosion, may change

the mean high waterline. Thus, it is clear that changing

the mean high waterline is theoretically possible. The

question is, did the installation of the riprap change the

mean high waterline in this case. The commissioner

found that it did not. The court finds that this conclusion

is supported by substantial evidence in the record, is

not a clear error of law, is not arbitrary and capricious,

and is not an abuse of discretion.

The riprap is a series of large rocks running perpendicular into the sea. Nothing connects the rocks other

than their placement on the ground. Seawater flows

around the rocks and within the riprap. The tidal waters

reach the face of the seawall, even directly behind the

riprap. As such, the riprap does not stop the seawater

from reaching the seawall with each tide. Nearly all of

the rocks composing the riprap are submerged at high

tide. These facts substantially support the commissioner’s finding that the mean high waterline did not change

in this case.8 The commissioner understood that the

mean high waterline could theoretically change based

on physical changes to the land but found in this case

that the riprap did not in fact change the mean high

waterline because of the physical attributes of the riprap and its physical interaction with the sea, and, as

such, the riprap did not amount to reclaimed land.9

The foregoing conclusion means that, essentially, all

of the fences are on land owned by the state in trust

for the public.10 As noted previously, the purpose of the

fences is to restrict public access to areas within the

public trust.11 The record evidence indicates that the

fences have in fact been significant deterrents to public

access.12

In balancing the property rights of the plaintiff against

the rights of the state and public to access the public

trust,13 the commissioner considered the following private property rights: (i) right to quiet enjoyment, (ii)

right to be free from private nuisance, (iii) right to be

free from trespass, and (iv) the right to be free from

lawsuits for injuries sustained by the public.14 In balancing these rights against the right of public access to the

public beach, the hearing officer found that each of

the foregoing private property rights can be exercised

without the need to deter or constrain public access to
the land of the public trust. The right to be free from

trespass on the plaintiff’s private property may be exercised by placing a fence on the private property line

within the private property of the plaintiff,15 as opposed

to extending a fence onto the public trust. The right to

quiet enjoyment and to be free from nuisance can be

asserted by contacting and cooperating with the public

authorities in the enforcement of existing law.16 The right

to be free from lawsuits for injuries occurring on the

plaintiff’s private property may be asserted by placing

a fence on the edge of his property, placing appropriate

signs and/or contacting and cooperating with the authorities in the enforcement of existing law. Accordingly, the

hearing officer found that the exercise of the plaintiff’s

private property rights did not justify placing a fence

on public property when balanced against the right of

the public to have access to the public property. This

court finds no fault in the hearing officer’s analysis and

balancing, for it would be quite an unusual circumstance

for one person’s private property rights to extend as

far as placing a fence on someone else’s property for

the very purpose of deterring access by the other owner

to their own property.

The hearing officer correctly noted that the aforementioned private property rights asserted by the plaintiff

concerned the use of his ‘‘upland property,’’ meaning

the property whose title is actually owned by the plaintiff. Thus, the hearing officer properly considered this

in his balance of rights, ultimately concluding, as noted,

that the rights asserted did not justify the fences’ interference with the public’s right to access the public trust.

Although not frontally asserted by the plaintiff, the

hearing officer also considered and contrasted the

plaintiff’s littoral rights, which, as a shore property

owner, do authorize him to use the intertidal area, subject to the applicable statutes and regulations, and subject to the public’s rights. These rights are ancient common-law rights that are subject to a balancing against

the public’s right to access the public trust. Thus, littoral

rights include the right to wharf out into the water, and

to build a pier, dock or other structure whose purpose

is to facilitate the coastal landowner’s access to and

use of the water. These rights are not absolute and have

been properly regulated. Here, the hearing officer compared those rights to the plaintiff’s desire to place the

fences. The hearing officer properly noted that, when

authorization is given to construct wharfs, piers and

other structures, the authorizations always seek to

ensure that the structure does not unreasonably impair

the public access. In this case, the very purpose, intent

and function of the fence is to impair the public’s access.

Accordingly, the comparison further justified the hearing officer’s rejection of the plaintiff’s permit application.

The plaintiff takes the commissioner to task on sev-
eral primary points. First, the plaintiff asserts that the

commissioner’s failure to find that the installation of

the riprap moved the mean high waterline is inconsistent with Lockwood and Rapoport. Such is not the case.

Clearly, the common law, and the foregoing two cases,

recognize that natural and/or man-made structures or

action may change the mean high waterline. However,

whether the mean high waterline has in fact changed

is primarily a fact question to be measured and assessed.

Here, the commissioner considered the riprap and reasonably concluded, with substantial evidentiary support in the record, that the riprap had not changed the

mean high waterline.17

Second, the plaintiff claims that the commissioner

did not consider all of the plaintiff’s property rights in

conducting the balance. The plaintiff complains that

the commissioner only considered the plaintiff’s littoral

rights. Such is clearly not the case. The commissioner considered all of the property rights asserted by the plaintiff, as reflected in the April 21, 2017 decision. In this

court’s view, the commissioner considered and balanced all rights asserted by the plaintiff but arrived at

the reasonable conclusion that the plaintiff’s rights did

not justify the incursion of the fences into the public’s

right of access. The court finds no clear error in this

conclusion. In this regard, the commissioner properly

considered and weighed the fact that the very purpose,

intention and function of the fences is to impair public

access to the public trust.18

The plaintiff asserts that the fences are also meant

to protect the public, essentially, from itself. In this

regard, the record indicates that the groin is slippery

and that fishermen have gotten surrounded by the

incoming tide when fishing on the groin. See footnote

1 of this opinion. Despite the foregoing, the plaintiff is

not in a position to place a fence on public property even

if it would function to protect the public by impeding

its access to a dangerous area. Decisions to protect the

public on public land are best left to the public itself

and/or to the government.

CONCLUSION

Given the standard of review in this administrative

appeal, and given the factually intensive determinations

of determining the mean high waterline and then balancing the private property interests against the public’s

interest in access to the public trust land, the court

finds that the record contains substantial evidence to

support the commissioner’s conclusions,19 and the conclusions reached are reasonable. The court finds no

clear error of law and no abuse of discretion in the

underlying decision to deny the permit application and

require removal of the unpermitted fences.

ORDER

The plaintiff’s motion for reconsideration is denied.
The appeal is dismissed.

* Affirmed. Nussbaum v. Dept. of Energy & Environmental Protection,

206 Conn. App. 734, A.3d (2021).

1 This area of stones, placed by the plaintiff, is referred to by the plaintiff

as riprap and extends perpendicularly outward from the face of the seawall

into the Sound. There is also a stone peninsula referred to as a ‘‘groin’’ in

the applicable technical terminology, which also extends perpendicularly

into the Sound.

2 General Statutes § 4-183 (j) provides in relevant part: ‘‘The court shall

not substitute its judgment for that of the agency as to the weight of the

evidence on questions of fact. 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. If the court finds

such prejudice, it shall sustain the appeal and, if appropriate, may render

a judgment under subsection (k) of this section or remand the case for

further proceedings. . . .’’

3 Both the plaintiff and the defendant agree that at least some portion of

the fences extend beyond the private property boundary of the plaintiff into

land owned by the state in public trust. The parties only disagree about the

extent of the incursion. Both parties agree that a permit from the defendant

is necessary to install and maintain the fences. Each of the fences is within

the defendant’s permitting jurisdiction because they are waterward of the

coastal jurisdiction line, which runs along the waterward face of the seawall.

4 The parties agreed that the fences do not cause an adverse environmental

impact and, thus, focused on balancing the plaintiff’s asserted property

rights against the right of the public to access the public trust (i.e., land

waterward of the mean high waterline) to determine whether or not the

public’s access to the public trust was unreasonably impaired.

5 The permit application for the fences states that their purpose is to

‘‘deter the general public from using the immediate area around a rock

strewn jetty which becomes [covered] by high tide waters. . . . The fences

do not completely prohibit public access, but provide a visible barrier and

warning [that, in the opinion of the applicant, the area] is unsafe and not

monitored. There are other more safer areas nearby that the public could

use for fishing.’’ It should be noted that the ‘‘rock strewn jetty’’ referred to

is part of the public trust.

6 Although not directly asserted, a landowner bordering water has a right

to wharf out into the water subject to reasonable regulation and subject to

the public’s right to access to the public trust.

7 The permit issued for installation of the riprap noted that the authorization to install the riprap ‘‘conveys no property rights in real estate or material,

nor any exclusive privileges, and is further subject to any and all public and

private rights.’’

8 The plaintiff’s expert (Raymond L. Redniss) testified that the installation

of the riprap did not change the mean high waterline for property boundary

purposes but did change it for permitting purposes. This argument makes

no sense. The mean high waterline is a fact that is measured. It cannot have

two disparate answers. The defendant’s expert (Brian D. Florek) testified

that the mean high waterline remained coincident with the waterward face

of the seawall in the area of the fences, and that the riprap was not a solid

[or continuous] surface, and, as a result, could not move the mean high

waterline. Given Florek’s evidence, it is clear that the commissioner’s finding

is supported by substantial evidence in the record.

9

In his final decision dated February 6, 2018, on page 8, the commissioner

states: ‘‘Hearing Officer [Brendan] Schain found that the placement of the

riprap did not create the type of ‘‘reclamation’’ that could result in a permanent accession to Mr. Nussbaum’s property because water continues to flow

over and around the riprap to the base of the seawall.’’ (Emphasis added.)

The hearing officer found that the riprap was not a continuous solid surface

and, as such, the placement of the riprap did not constitute reclamation

and did not move the mean high waterline. Thus, the commissioner, and

the hearing officer, understood that reclamation could theoretically occur;

however, they factually found that placement of the riprap was not reclamation and did not move the mean high waterline because of the physical
attributes of the riprap and its interaction with the sea. Surveying expert

Brian D. Florek agreed and testified as such, clearly providing substantial

evidence in support of the foregoing findings by the commissioner and the

hearing officer.

10 However, regardless of the analysis of the riprap and the mean high

waterline, a portion of the fences extends into the public trust, and the

plaintiff has not asserted any property right which would justify his placing

a fence on public land with the very purpose and function of impeding the

public’s access to its own land.

11 There are about eight to ten feet between the end of the fences and the

mean low waterline.

12 The plaintiff himself confirmed this fact in his testimony concerning

aggrievement at the hearing in this matter.

13 The public has a right to access the land extending from the mean high

waterline waterward to the water, although this right of access does not

include a right to trespass on private property. In this area it is possible for

the public to access the public trust without trespassing on the private

property of the plaintiff.

14 See April 21, 2017 hearing officer decision on page 10, first paragraph.

The commissioner also considered the plaintiff’s right to wharf out into

the water.

15 The plaintiff previously had such a fence, but it was destroyed in a

hurricane. The plaintiff has not sought permission to reconstruct such a

fence within the bounds of his private property.

16 The type of nuisance complained of by the plaintiff, such as litter, cannot

justify the draconian remedy of preventing the public from accessing its own

land, particularly when less drastic and more typical means of addressing

the issue are available.

17 The plaintiff correctly points out that the mean high waterline is determined by elevation measurement, measuring where the water intersects the

shore. However, the plaintiff ignores the issue that the finder of fact must

determine—whether a specific structure, such as the riprap, constitutes

land or the shore. Here, the commissioner determined, as supported by the

evidence of surveying expert Brian D. Florek, that the riprap was not a

continuous solid structure and did not amount to reclamation.

18 Contrary to the plaintiff’s assertions, the commissioner did not seek to

maintain a policy of denying all structures, other than docks and piers,

below the mean high waterline. Instead, the commissioner properly balanced

the asserted private property rights against the public’s right to access to

the public trust and reached a conclusion that these two fences failed in

the balance.

19 The commissioner adopted the decision of the hearing officer as his own.