ELR Citation: ELR 20226
No(s). 170229 (Conn. Super. Ct. Dec 11, 1973)

The Connecticut Commissioner of Natural Resources' denial of plaintiff's application for a permit to dredge and fill a tidal marsh that is adjacent to its upland industrial property, and which the Commissioner has designated as wetland under the state's Tidal Wetlands Act of 1969, represents neither an unconstitutional taking of private property not an unreasonable exercise of the police power. Plaintiff has made no showing that wharfing out to achieve access to deep water is not a reasonable alternative to a dredge and fill deep harbor project, and an unconstitutional taking cannot be said to have occurred until it appears that plaintiff has been denied access to deep water, the primary right of a littoral owner. The Commissioner's findings that the marsh in question is of great ecological value and that the state has a great stake in the preservation of such tidal wetland are amply supported by the evidence adduced at the permit application hearing. If deep water access can be accomplished in some way that will not destroy this marsh, then the Commissioner's action is a reasonable exercise of the police power, even though the alternative method of access may be more costly. The court notes that the record supporting the Commissioner's designation of the marsh as wetland is ambiguous, but declines to remand the application since it is legally deficient regarding the submerged portion of the marsh, and since a separate application would in any case be required for the consideration of plaintiff's claim that certain portions of the wetlands are in fact uplands subject to its ownership.

Counsel for Plaintiff
Alexander A. Goldfarb
One Lewis Street
Hartford, CT 06103

Counsel for State Defendant
Brian E. O'Neill Asst. Attorney General
State Office Building
Hartford, CT 06115

Counsel for Defendants National Audubon Society, Greenwich Audubon Society, and Save the Wetlands Committee, Inc.
Haynes N. Johnson
Bryan, Parmelee, Johnson & Bollinger
460 Summer Street
Stamford, CT 06901

Counsel for Defendant Connecticut Conservation Association
Thomas C. Gerety
162 Penfield Road
Fairfield, CT 06430

Counsel for Defendants Protect Your Environment and Connecticut Action Now
David B. Beizer
21 Hawley Road
Avon, CT 06001

Peter B. Cooper
35 Elm Street
New Haven, CT 06510