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JOHN HERASIMOVICH v. TOWN OF

WALLINGFORD ET AL.

(AC 34643)

(AC 34644)

Lavine, Beach and Sheldon, Js.

Argued January 7—officially released April 8, 2014

(Appeal from Superior Court, judicial district of New

Haven, Hon. Robert I. Berdon, judge trial referee.)

Janis M. Small, corporation counsel, for the appellant in AC 34643 (named defendant et al.).

David H. Wrinn, assistant attorney general, with

whom, on the brief, was George Jepsen, attorney general, for the appellant in AC 34644 (defendant Commissioner of Energy and Environmental Protection).

John L. Cordani, Jr., with whom, on the brief, was

Vincent T. McManus, for the appellee (plaintiff).
Opinion

LAVINE, J. The defendants, the town of Wallingford,

the Wallingford Planning and Zoning Commission acting as Aquifer Protection Agency (agency), and Daniel

Esty, the Commissioner of Energy and Environmental

Protection (commissioner), appeal from the judgment

of the Superior Court sustaining the appeal of the plaintiff, John Herasimovich, from the decision of the agency

amending its aquifer protection regulations.1 The defendants claim that the court erroneously sustained the

plaintiff’s appeal when it (1) applied an adjudicatory

standard of review to the agency’s legislative action of

amending its regulations, and (2) determined that the

agency’s notice of a public hearing was deficient. We

agree with the defendants and, accordingly, reverse the

judgment of the court.2

The relevant procedural and factual history is as follows. The plaintiff is the owner of a business that services lawn mowers and other small engine equipment.

His business is located in Wallingford in an area subject

to regulation under the Aquifer Protection Act (act),

General Statutes § 22a-354g et seq. The purpose of the

act is to prevent the contamination of drinking water.

See General Statutes § 22a-354g. Under the act, the

Department of Energy and Environmental Protection

(department) has general oversight, but much of the

regulation and administration is delegated to local entities, in this case, the agency. See General Statutes

§ 22a-354o.

In August, 2005, the agency notified the plaintiff that

he was required to register his business as a ‘‘regulated

activity’’ pursuant to the Wallingford Aquifer Protection

Areas Regulations (regulations). The regulations

defined a ‘‘regulated activity’’ in relevant part as the

‘‘repair or maintenance of vehicles or internal combustion engines of vehicles, involving the use, storage or

disposal of hazardous materials, including solvents,

lubricants, paints, brake fluids, transmission fluids or

the generation of hazardous wastes.’’ Wallingford Aquifer Protection Areas Regs., § 2. The regulation defined

‘‘vehicle’’ as ‘‘any vehicle propelled or drawn by any

non-muscular power including without limitation an

automobile, aircraft, all-terrain vehicle, snowmobile or

vessel.’’ Id. The agency contended that servicing lawn

mowers was a ‘‘regulated activity’’ because lawn mowers are powered by internal combustion engines.

The plaintiff refused to register, contending that lawn

mowers were not covered under the regulation. In

response, in October, 2007, the agency amended the

regulations to include lawn mowers within the definition of ‘‘regulated activity.’’ The plaintiff appealed the

agency’s action to the Superior Court and the court, A.

Robinson, J., sustained the appeal. The court found the

regulation to be valid, but determined that the public
notice of the proposed amendment was deficient.

The agency issued a second public notice and the

proposed amendment was again adopted by the agency

on November 20, 2009. The plaintiff again appealed,

and the court, Hon. RobertI. Berdon, judge trialreferee,

sustained the plaintiff’s appeal, finding that the agency’s

action was not supported by substantial evidence, and

that the public notice published by the agency was

deficient. The defendants, on the granting of certification, thereafter filed these appeals.

On appeal, the defendants claim that the court

improperly (1) reviewed the agency’s action under the

substantial evidence standard, and (2) found the public

notice to be deficient. We agree with the defendants

and, accordingly, reverse the judgment of the court.

I

We first address the defendants’ claim that the court

failed to employ an appropriately deferential standard

of review when it applied the ‘‘substantial evidence’’

test to the plaintiff’s administrative appeal.

When a party claims that the trial court employed an

improper standard of review, our review on appeal is

de novo because such a claim necessarily involves a

question of law. See Wallingford v. Dept. of Public

Health, 262 Conn. 758, 771, 817 A.2d 644 (2003).

It is a well settled precept of administrative law that

agency actions are subject to different standards of

review depending on the nature of the agency action.

When an agency is acting in its adjudicative capacity,

and engaged in fact-finding, the agency’s action will be

upheld only when the agency can demonstrate that the

action is supported by substantial evidence. See Tarullo

v. Inland Wetlands & Watercourses Commission, 263

Conn. 572, 583–87, 821 A.2d 734 (2003) (applying substantial evidence standard to review decision granting

wetlands permit). Where the agency is functioning in

its legislative, or a rule-making capacity, however, the

standard of review is substantially more deferential,

and a regulation ‘‘must be upheld by the [reviewing]

court if [it is] reasonably supported by the record’’;

(emphasis omitted; internal quotation marks omitted)

Lee & Lamont Realty v. Planning & Zoning Commission, 112 Conn. App. 484, 490, 963 A.2d 98 (2009); and

the aggrieved party fails to demonstrate that the

agency’s action was arbitrary, illegal, or an abuse of

discretion. See Kaufman v. Zoning Commission, 232

Conn. 122, 152–53, 653 A.2d 798 (1995).

In the present case, the court improperly applied the

substantial evidence standard of review to the agency’s

legislative act. The agency was functioning in its legislative capacity and not in an adjudicative fashion when

it amended its regulations to clarify the definition of

‘‘regulated activity.’’ In amending the text of the regulation, the agency was not engaged in making a factual
determination as to whether the plaintiff’s business

itself was a ‘‘regulated activity,’’ but, rather, was

engaged in adopting a regulation of general applicability. Notwithstanding the factthatthe plaintiff’s counsel,3

introduced numerous issues when he commented at

the public hearing, including whether the plaintiff’s

property was located in the regulated area, the purpose

of the hearing was to consider a narrow amendment

to the regulations. The introduction of new issues

through the statements and arguments of counsel does

not change the fact that the agency was engaged in a

legislative act that is entitled to judicial deference.

We therefore conclude that the court applied the

wrong standard of review in adjudicating the plaintiff’s

appeal. Because an appeal from an administrative

agency is based solely on the record, we will review

the agency’s action under the appropriate standard of

review. See Rapoport v. Zoning Board of Appeals, 301

Conn. 22, 34, 19 A.3d 622 (2011). When reviewing a

challenge to an agency’s legislative action, the action

is entitled to deference and will be upheld so long as

the regulation finds reasonable support in the record

and is authorized by statute. See Kaufman v. Zoning

Commission, supra, 232 Conn. 152–53; Lee & Lamont

Realty v. Planning & Zoning Commission, supra, 112

Conn. App. 490–91.

On the basis of our own review of the record, we

conclude that the amendment to the regulations was

reasonably supported by the record and that the regulation was authorized by the act. The purpose of the act

is to prevent the contamination of drinking water and,

pursuant to the act, the agency was charged with adopting regulations and administering the act in the town.

See General Statutes § 22a-354p (f).4 The amendment

at issue was introduced ‘‘to clarify that the repair and

maintenance of all combustion engines is a regulated

activity.’’ The agency had before it ample documentation that supported the proposed amendment, including

reports concerning the environmental danger of internal combustion engine repair generally, as well as the

contamination hazards inherent in lawn care businesses. Moreover, in a letter dated September 5, 2007,

the department approved the agency’s proposed amendment, stating that it was ‘‘reasonably related to the

purpose of groundwater protection’’ and consistent

with the act. The record also reveals that on October

1, 2007, the department amended its model aquifer protection regulations5

to expressly include lawn mowers

within its definition of ‘‘vehicles.’’

On the basis of our review of the record, we conclude

that the amendment was reasonably supported by the

record and that the regulation was proper.

II

The defendants’ second claim is that the court
improperly found the public notice for the hearing to

be deficient. Judge Berdon determined that the notice

was deficient because it failed to inform the public as

to all of the issues that were discussed during the public

hearing. The court reasoned that because this hearing

was a ‘‘do-over’’ of the previous hearing that occurred

in October, 2007, the agency was required to give notice

of all of the issues which had been addressed in the

previous hearing.6 We disagree that the notice was

deficient.

To be adequate, the notice is required to fairly and

sufficiently apprise those who may be affected of the

nature and character of the action proposed, in order

to make possible intelligent preparation for participation in the hearing. See Nazarko v. Zoning Commission, 50 Conn. App. 517, 519, 717 A.2d 853, cert. denied,

247 Conn. 941, 723 A.2d 318 (1998).

In this case the notice requirement was satisfied.7

Here, the agency proposed amending the regulations

to include repairing lawn mowers with internal combustion engines as a ‘‘regulated activity.’’ The notice provided the public with sufficient information concerning

the date, time, and location of the hearing. The notice

also specifically listed the content of the amendments

that were to be considered.8 The agency proposed a

simple amendment to its regulations so that lawn

mowerrepair would be included within the definition of

a ‘‘regulated activity.’’ Any issues raised by the plaintiff

outside of the proposed action were simply not relevant

to the proceeding and surely did not trigger public

notice. Notice is only required as to issues related to

the action that the agency proposes. See Urbanowicz

v. Planning & Zoning Commission, 87 Conn. App. 277,

298, 865 A.2d 474 (2005). For obvious reasons, a party

cannot be permitted to expand the scope of an administrative hearing, and then on appeal, claim error when

the notice does not encompass the issues that he introduced. On the basis of our review of the record, we

conclude that the court improperly concluded that the

agency’s notice was legally insufficient.

The judgment is reversed and the case is remanded

with direction to render judgment dismissing the plaintiff’s appeal.

In this opinion the other judges concurred.

1 The commissioner was not a party to the agency’s regulation amendment

process, but rather was served with the plaintiff’s administrative appeal and

appeared as a defendant before the Superior Court pursuant to General

Statutes § 22a-354q (a). The commissioner advances the same principal

claims in his appeal as those advanced by the town of Wallingford and the

agency in their appeal.

2 Following oral argument before this court, the plaintiff filed motions to

dismiss each appeal for lack of subject matter jurisdiction pursuant to

Practice Book § 66-8. The plaintiff contended that this court lacked jurisdiction because the agency’s act of amending its regulations was ultra vires.

The defendants each opposed the motion filed in their respective appeals,

arguing that the motions to dismiss were an attempt to introduce additional

arguments not presented in the plaintiff’s brief. The motions are denied.

This court has jurisdiction over any final judgment of the Superior Court
even if that court lacked jurisdiction. See Ajadi v. Commissioner of Correction, 280 Conn. 514, 534 n.22, 911 A.2d 712 (2006).

3 The plaintiff’s counsel who argued his appeal before this court did not

represent him before the agency or in the Superior Court.

4 General Statutes § 22a-354p (f) provides in relevant part: ‘‘Any regulations

adopted by an agency under this section shall not be effective unless the

Commissioner of Energy and Environmental Protection determines that

such regulations are reasonably related to the purpose of groundwater

protection . . . . A regulation adopted by a municipality shall not be

deemed inconsistent if such regulation establishes a greater level of protection . . . .’’

5 We note that General Statutes § 22a-354l expressly provides that the

model regulations ‘‘may be considered by municipal aquifer protection agencies in adopting regulations pursuant to [the act].’’

6 At the previous hearing, the plaintiff’s counsel argued that boundaries

for the area subject to the regulations were improperly drawn and that there

was no evidence that the plaintiff’s business contaminated the groundwater.

7 General Statutes § 22a-354p (b) provides in relevant part: ‘‘No regulations

of an aquifer protection agency shall become effective or be established

until after a public hearing in relation thereto is held by the agency at which

parties in interest and citizens shall have an opportunity to be heard. Notice

of the time and place of such hearing shall be published in the form of a legal

advertisement, appearing at least twice in a newspaper having a substantial

circulation in the municipality at intervals of not less than two days, the

first not more than twenty-five days or less than fifteen days, and the last

not less than two days, before such hearing, and a copy of such proposed

regulation shall be filed in the office of the town, city or borough clerk, as

the case may be, in such municipality, for public inspection at least ten

days before such hearing, and may be published in full in such paper. . . .’’

8 The notice provided in relevant part: ‘‘Two (2) amendments to the Aquifer

Protection Areas Regulations as follows:

1. REPLACE SECTION 2, DEFINITIONS—Regulated Activity with the following:

D. Repair or maintenance of vehicles or internal combustion engines or

transmissions, including but not limited to, those associated with vehicles,

lawnmowers, snow blowers, lawn maintenance equipment, garden or landscaping equipment, farm equipment, compressors, which involve the use,

storage, or disposal of hazardous material including solvents, lubricants,

paints, brake fluids, transmission fluids or the generation of hazardous

materials or wastes.

2. REPLACE SECTION 2, DEFINITIONS—Vehicle(s) with the following:

Includes any device propelled or drawn by any non-muscular power,

including, without limitation, an automobile, aircraft, all-terrain vehicle,

snowmobile or vessel.’’ (Emphasis in original.)